The Intellectual Property Office (IPO) is consulting on two sets of draft regulations introducing the new UK orphan works scheme and implementing the EU Directive on orphan works (2012/28/EU) (the Directive) (the consultation).
The Enterprise and Regulatory Reform Act 2013 (2013 Act) introduced a system for the licensing of orphan works and voluntary extended collective licensing, with a reserve power to require a collecting society to adopt a code of practice.
The IPO has published a factsheet giving details of how the government’s proposed orphan works licensing scheme and its proposals for extended collective licensing, to be included in the implementing regulations made under the 2013 Act, would work in practice.
EU member states must implement the Directive by 29 October 2014.
The consultation covers the new draft regulations on orphan works licensing in the UK under section 116A, C and D of the Copyright, Designs and Patents Act 1988 (as inserted by the 2013 Act) and the use of orphan works under the Directive.
Under the draft Copyright (Licensing of Orphan Works) Regulations 2014, applicants for a licence to copy an orphan work will have to undertake a diligent search for the relevant rights-holder. The search should:
Be appropriate to the orphan work or orphan right.
Relate to the rights in the work or the rights the licensee proposes to use.
Comprise a reasonable search to identify the rights-holder of the work or right.
The IPO will keep an orphan works register listing details of works which have been subject to diligent search, those licensed as orphans, works where a licence has been refused and where an absent rights-holder has come forward subsequently.
Licences will be non-exclusive, apply within the UK and can last for up to seven years although
renewal is allowed. Sublicensing will not be allowed. The IPO will have a general discretion to
refuse a licence if it considers that it is inappropriate.
The draft Copyright (Certain Permitted Uses of Orphan Works) Regulations 2014 introduce a new exception to allow cultural and heritage organisations to digitally reproduce orphan works and make them available to the public for non-commercial use without infringing copyright. Organisations must carry out a diligent search for the relevant rights-holder before using the exception, or risk facing copyright infringement. The IPO asks for views on whether civil sanctions are sufficient.
The IPO is looking for views on the drafting, structure and effect of the two sets of draft regulations, but not on the principles of orphan works licensing that were covered in earlier consultations.
The diligent search requirement is a key aspect of both sets of regulations. The IPO’s view is that as a licence will only be issued after a diligent search, the likelihood of the rights-holder being found after the work is used is low.
The government will publish a summary of the responses to the consultation by the end of May 2014, after which the amended regulations will be laid before Parliament. An important consultation question is whether the fact that the licences are non-exclusive and limited to the UK will affect potential use of the scheme.
Source: IPO: Copyright works: seeking the lost, 10 January 2014, www.ipo.gov.uk/consult-2014-lost.pdf. Comments are requested by 28 February 2014.
First published in the March 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.